ARUN KUMA Vs. STATE

JUDGEMENT

(1.) This Criminal Miscellaneous Petition has been filed to suspend the sentence imposed on the petitioner by the judgment, dtd. 12/12/2023 in C.C.No.50 of 2020 by the learned Principal Special Judge, Special Court under EC and NDPS Act, Chennai and enlarge him on bail pending disposal of the main appeal.

(2.) The Trial Court convicted the petitioner and sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs.50,000.00, in default to undergo six months rigorous imprisonment for the offence under Sec. 8(c) r/w. 20(b)(ii)(B) of NDPS Act. Challenging the same, the petitioner preferred an appeal and the Suspension of Sentence.

(3.) The contention of the petitioner is that the case projected against the petitioner, a student was found in possession of 2.5 kgs of ganja near the bus stand at Tiruvallur, who is said to have smuggled the contraband from the State of Andhra Pradesh. He would submit that no travel ticket from the petitioner seized to show that he travelled from Andhra Pradesh, on the other hand PW1 and PW2, Sub-Inspector of Police and Head Constable state that they found the petitioner walking near the bus stand and he was apprehended. In this case, PW1 is the person received secret information, informed his superior/PW4 by EX.P1 and proceeded along with PW2 and one Rajarajan. But the said Rajarajan not examined as witness, who is said to have typed all the documents, proceedings and statements in the laptop. There is contradiction between PW1 and PW2 as regards the time of reaching the spot, apprehending the accused and conducting search. It is submitted that though in the FIR two private persons name recorded who refused to be the witnesses for search and seizure, except for their names no other details given. He would further submit that PW1 admits that information was given to PW4 but Ex.P1 shows that it was prepared in the place of occurrence. When prior information was received by PW1 in the Police Station, he ought to have prepared Ex.P1, placed it before PW4 and in his absence, he could have informed through phone. But from the evidence of PW1, it is clear that Ex.P1 prepared in the scene of occurrence confirmed by PW4. Ex.P11 is the Form 95 and there is nothing to show that the same was produced along with contraband before the remanding Magistrate on 4/1/2020 . The properties in this case was produced with a delay of 19 days. Ex.P7/57 report is contradictory to Ex.P1. He further submitted that in Ex.P3/seiziure mahazar and Ex.P7/57 report, it is recorded that MO1 and MO2 samples were placed in a silver plastic cover and forwarded for forensic examination. But the evidence of PW3, Assistant Director, Forensic Department and Ex.P9, it is otherwise the samples were sent in a aluminium foil cover. This aluminium foil is an introduction but no explanation given, further the samples went with a delay of 19 days, hence, the search and seizure becomes doutful. The Trial Court failed to consider that in this case, statutory conditions not followed and there is a doubt in search and seizure. He further submitted that the petitioner is a student studying 3rd year Computer Science in a Polytechnic College, no public witness examined though the seizure took place in a bus stand and there is a delay in sending the samples to the Forensic Department. Hence prayed for suspension of sentence.